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Terms of Service
DYNAMOD TERMS OF SERVICE These Terms of Service constitute the agreement ("Agreement") between FLUXURE ADVANCED MOTION MEDIA, INC. ("we," "us," .FLUXURE. or "DYNAMOD") and the user ("you," "user" or "Customer") of DYNAMOD's enhanced Portal services and any related products or services ("Service"). This Agreement governs all Portal Services. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. 1. SERVICE 1.1 Term Service is offered on a monthly basis for a term which begins on the date that DYNAMOD activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give DYNAMOD written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement. 1.2 Lawful Use of Service 1.2.1 Prohibited Uses You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in DYNAMOD's sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. DYNAMOD reserves the right to terminate your service immediately and without advance notice if DYNAMOD, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at DYNAMOD's discretion be immediately charged to your credit card. You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless DYNAMOD against any and all liability for any such use. If DYNAMOD, in its sole discretion believes that you have violated the above restrictions, DYNAMOD may forward the objectionable material, as well as your communications with DYNAMOD and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding. 1.3 Copyright / Trademark / Unauthorized Usage of Software The Service software used to provide the Service or provided to you in conjunction with providing the Service,, and all Services, information, documents and materials on DYNAMOD's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of DYNAMOD are and shall remain the exclusive property of DYNAMOD and nothing in this Agreement shall grant you the right or license to use any of such marks. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code. 1.4 Tampering with the Service DYNAMOD reserves the right to terminate your Service should you tamper with the Software, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so. 1.5 Theft of Service You agree to notify DYNAMOD immediately, in writing or by calling the DYNAMOD customer support line, if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. 2. Service Outage Due to Suspension of Your Account You acknowledge and understand that service outages due to suspension of your account as a result of billing issues will prevent ALL Service. 3. CHANGES TO THIS AGREEMENT DYNAMOD may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the "Service Announcements" section of DYNAMOD's website (currently located at http://www.dynamod.com/terms_of_service.php ). Such changes will become binding on Customer, on the date posted to the DYNAMOD website and no further notice by DYNAMOD is required. This Agreement as posted supersedes all previously agreed to electronic and written terms of service. 4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION 4.1 Billing You must give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by DYNAMOD) when the Service is activated. DYNAMOD reserves the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise DYNAMOD at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which DYNAMOD decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, advanced feature charges, equipment purchases, disconnect fees. 4.2 Billing Disputes You must notify DYNAMOD in writing within 7 days after receiving your credit card statement if you dispute any DYNAMOD charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Customer Care Billing Department DYNAMOD LLC 2310 7th Avenue Suite #4N NY, NY 10030 or billing@dynamod.com 4.3 Payment DYNAMOD accepts payments only by credit card as set forth in Section 4.1. Your initial use of the Service authorizes DYNAMOD to charge the credit card account number on file with DYNAMOD, including any changed information given DYNAMOD if the card expires or is replaced, or if you substitute a different card, for DYNAMOD charges as set forth in Section 4.1. This authorization will remain valid until 30 days after DYNAMOD receives your written notice terminating DYNAMOD's authority to charge your credit card, whereupon DYNAMOD will charge you the disconnect fee and any other outstanding charges and terminate the Service. DYNAMOD may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with DYNAMOD is declined or reversed, your credit card expires and you have not provided DYNAMOD with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to DYNAMOD for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by DYNAMOD in collecting such amounts, such as (but not limited to) collection costs and attorney's fees. 4.4 Termination/Discontinuance of Service DYNAMOD reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion. If DYNAMOD discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of DYNAMOD or of a third party provider to which DYNAMOD is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 4.5, all of which immediately become due and payable. 4.5 Disconnect Fee Customers not subscribed to a monthly plan will be charged a disconnect fee of $24.99 per Portal upon termination of Service for any reason or for convenience by Customer. The disconnect fee becomes due and payable immediately upon termination and will billed directly to Customer's credit card. If Customer has multiple Portals, Customer will be charged a disconnect fee of $24.99 per Portal for each Portal disconnected. 4.6 Reconnect Fee Customer will be charged a reconnect fee of $24.99 per Portal for reactivation due to billing discrepencies that result in temporary account suspension and/or portal deactivation. 4.7 Money Back Guarantee; Limitations and Conditions DYNAMOD offers a 14-day Money Back Guarantee (30 or 90 days for Retail Customers; see offer details in advertising or online content of the retailer from whom Retail Customer purchased Equipment for the applicable time period) (such 14, 30 or 90 day period, the "Warranty Period"), applicable only to User.s first-ordered Portal per account, not to additional or secondary Portal. Under terms of this Money Back Guarantee, DYNAMOD refunds the activation fee, first month of service, and shipping charges and waives the disconnect fee, provided the terms described below are satisfied. DYNAMOD reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice. In order to be entitled to this Money Back Guarantee, User must cancel service within the number of days in the Warranty Period after the account activation; THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS. To obtain a return authorization number, User must contact billing@dynamod.com 5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION 5.1 Limitation of Liability DYNAMOD shall not be liable for any delay or failure to provide the Service, at any time or from time to time, or any interruption that is caused by any of the following: 1.) act or omission of an underlying carrier, service provider, vendor or other third party; 2.) equipment, network or facility failure; 3.) equipment, network or facility upgrade or modification; 4.) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions; 5.) equipment, network or facility shortage; 6.) equipment or facility relocation; 7.) service, equipment, network or facility failure caused by the loss of power to Customer; 8) outage of Customer.s ISP or broadband service provider; 9) act or omission of Customer or any person using the Service or Device provided to Customer; or 10) any other cause that is beyond DYNAMOD's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications to be connected or completed. DYNAMOD's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to DYNAMOD's performance or nonperformance hereunder or (iii) any DYNAMOD act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period. 5.2 Disclaimer of Damages IN NO EVENT SHALL DYNAMOD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT DYNAMOD WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. 5.3 Indemnification Customer agrees to defend, indemnify, and hold harmless DYNAMOD, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services. This paragraph shall survive termination of this Agreement. 5.4 No Warranties on Service DYNAMOD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER.S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, DYNAMOD DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DATA OR INFORMATION. NEITHER DYNAMOD NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO DYNAMOD'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF DYNAMOD'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY DYNAMOD OR DYNAMOD'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. 5.6 No Third Party Beneficiaries No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights. 5.7 Content You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. DYNAMOD reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if DYNAMOD determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with DYNAMOD's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations. DYNAMOD's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content. You will indemnify and hold DYNAMOD against any and all liability arising from the content transmitted by or to you or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service provided to you. 6. GOVERNING LAW / RESOLUTION OF DISPUTES 6.1 Mandatory Arbitration Any dispute or claim between Customer and DYNAMOD arising out of or relating to the Service provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (or, for Customers subscribing to service in Canada, a Canadian arbitration organization of DYNAMOD's choosing). The arbitration shall take place in New York, New York (or, for Customers subscribing to service in Canada, Toronto, Ontario) and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL. 6.2 Governing Law The Agreement and the relationship between you and DYNAMOD shall be governed by the laws of the State of New York,U.S.A. without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and DYNAMOD agree to submit to the personal and exclusive jurisdiction of the courts located within the state of New York, U.S.A. and waive any objection as to venue or inconvenient forum. The failure of DYNAMOD to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. 6.3 Entire Agreement This Agreement and the rates for Services found on DYNAMOD's website constitute the entire agreement between you and DYNAMOD and govern your use of the Service, superseding any prior agreements between you and DYNAMOD and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon DYNAMOD unless and until posted in accordance with Section 3 hereof. 6.4 Severability If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
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